Judge is right in insisting on compliance

May 13, 2013

Given the mishmash of state and federal agencies responsible for ensuring dams are safe, it is difficult enough to know whether a given impoundment is cause for concern. But when government officials say they are worried, corrective action needs to be taken.

U.S. District Judge John Preston Bailey seems to agree with the federal Mine Safety and Health Administration on that. But, according to the MSHA, the out-of-state owner of a coal slurry impoundment in Barbour County does not.

MSHA officials say the dam holding back slurry waste from a coal mine has not been certified as safe by a professional engineer for more than two years. Having termed the dam a "high hazard" one, the agency filed a lawsuit against its owner, the Energy Marketing Co. Inc. The firm reportedly is owned by Dominick LaRosa, of Potomac, Md.

It appears LaRosa is not especially worried about the MSHA action. In his ruling on the situation, issued last week, Bailey noted neither LaRosa nor his company have hired an attorney to represent them in the case.

That prompted the judge to decide there is no reason to hold a hearing on the MSHA lawsuit. Bailey has given LaRosa and his company until June 3 to have the Barbour County dam checked by an engineer. He also has fined the firm more than $13,500.

One way or another, the dam will be checked. The state Department of Environmental Protection is planning to hire an engineer to examine it.

But as MSHA pleaded in a filing with the court, LaRosa and his firm have no incentive to comply with government orders because they "feel no economic impact ..."

Bailey is providing powerful motivation not just for LaRosa and his company, but also for other owners and operators of dams in West Virginia. His attitude, and that of state and federal regulators, in insisting that safety regulations be followed, is commendable.